Arizona Supreme Court reinstates 160-year-old ban on abortions

An 1864 law that criminalized nearly all abortions in Arizona can take effect, the state’s top court said Tuesday.

A 2022 state law, which banned abortions after the 15th week of pregnancy, didn’t “create a right to, or otherwise provide independent statutory authority for, an abortion” or repeal or restrict the territorial law, Justice John R. Lopez IV said.

The 2022 law was predicated entirely on the right to abortion established by the US Supreme Court in 1973’s Roe v. Wade, Lopez said.

But the top court’s reversal of that decision in June 2022’s Dobbs v. Jackson Women’s Health Organization gave the 1864 provision new life and required lifting the injunction against it, the court said.

“Absent the federal constitutional abortion right, and because” the new law doesn’t “independently authorize abortion, there is no provision in federal or state law prohibiting” the 1864 statute’s operation, he said.

The court vacated an appeals court decision that rejected anti-abortion doctor Eric Hazelrigg’s argument that Arizona prohibits all procedures except those within the first 15 weeks that are immediately necessary to save a pregnant person’s life. The doctor intervened in the case after Attorney General Kris Mayes, D, said she wouldn’t defend the old version.

It’s a consequential decision in a state that’s became an abortion battle ground after a Democratic-led administration took over in early 2023. Reproductive rights advocates are currently collecting signatures for a November ballot measure to enshrine abortion rights in the Arizona Constitution.

Chief Justice Robert M. Brutinel and Vice Chief Justice Ann A. Scott Timmer dissented.

Justice William G. Montgomery recused himself after calls were made for him to sit out the session due to his public anti-abortion statements.

Alliance Defending Freedom represents Hazelrigg.

Miller Pitt Feldman & McAnally PLC, Coppersmith Brockelman PLC, Planned Parenthood Federation of America represent Planned Parenthood Arizaona and the Pima County Attorney’s Office.

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

The case is Planned Parenthood Ariz., Inc. v. Hazelrigg, Ariz., No. CV-23-0005-PR, 4/9/24.